Reiner & Reiner
[2009] FamCA 926
•25 September, 2009
FAMILY COURT OF AUSTRALIA
| REINER & REINER | [2009] FamCA 926 |
| FAMILY LAW – PARENTING - disputed orders as to time with child - Impact of separation of child from siblings - Allegations of medical negligence against a parent which is unfounded - Not appropriate to make order for EQUAL SHARED PARENTAL RESPONSIBILITY FAMILY LAW – PROPERTY - Division of modest assets - Disparity of contributions - Add-backs |
| Family Law Act 1975 (Cth) ss4, 60B, 60B(1)(b),(c) and (d), 60B(2), 60CA, 60CC(2)(b), 60CC93), 60CG(1), 61DA(1), (2), (4), 65D(1), 69ZT(1), 74(4)(a), (b), 75(2), 75(2)(1), 79 Evidence Act 1995 (Cth) ss 140(2), 55, 56, 140(2) Child Support (Assessment) Act 1989 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Champness and Hanson (2009) FamCAFC 96 Hickey & Hickey & Attorney-General for the commonwealth of Australia (2003) FLC 93-143 Coughlan (2005) FLC 93-220 Farnell (1996) FLC 92-681 Marando (1997) FLC 92-754 Townsend and Townsend (1995) FLC 92-569 Robb and Robb (1995) FLC 92-555 Pierce and Pierce (1999) FLC 92-844 Mallett and Mallett (1984) FLC 91-507 |
| APPLICANT: | Ms Reiner |
| RESPONDENT: | Mr Reiner |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 1284 | of | 2007 |
| DATE DELIVERED: | 25 September, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 11, 12, 15, 16 & 17 JUNE 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR KANAREV |
| SOLICITOR FOR THE APPLICANT: | SOUTH EAST LAWYERS |
| THE RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR ALLEN |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | SCHETZER CONSTANTINOU |
Orders
For the avoidance of doubt, the child referred to in these orders is J born … December, 2002.
That the husband have sole responsibility for all major educational decisions concerning the child during his primary school years but thereafter, the husband and the wife shall make the decisions jointly.
That the wife have sole parental responsibility for all major medical decisions concerning the child.
That for the purposes of all major medical treatment for the child, unless it is urgent, the wife consult the husband by email advising him in advance of any medical treatment proposed by her in respect of the child and any medical treatment recommended by the child’s medical practitioners.
That by these orders, the husband may attend any medical practitioner at his expense and consult with the practitioner relating to the medical issues associated with the child, and subject to any views of the practitioner, attend any consultation between the doctor and the child.
That save as set out above, the husband and the wife have equal shared parental responsibility for the child.
That the child live with the wife.
That the child spend time with the husband as follows :
(a)from the conclusion of school on Thursday to the commencement of school on the following Monday morning in each alternate week commencing on Thursday 1 October, 2009;
(b)for one half of all school term holidays by agreement and failing agreement, for the period from 9:00 am. on the second Saturday of the holidays until 7:00 pm. on the third Sunday of the holidays;
(c)for one half of all long summer school holidays by agreement and failing agreement, for the one half during which the child’s older siblings are not spending time with their biological father;
(d)from 8:30 am. on Easter Sunday in 2010 from 8:30 am. until 4:00 pm. on Easter Monday and a similar period in each alternate year thereafter;
(e)if the child’s birthday or the husband’s birthday falls on a weekday during which time the child is not spending time with the husband, then from the conclusion of school on that day until 7:00 pm.;
(f)if the child’s birthday or the husband’s birthday falls on a Saturday or a Sunday during which time the child is not spending time with the husband, then for a period of four hours from 1:00 pm. to 5:00 pm. on the relevant day;
(g)from 4:00 pm. on 25 December, 2009 until 5:00 pm. on 26 December, 2009 and for a similar period in each alternate year thereafter;
(h)from 4:00 pm. on 24 December, 2010 until 4:00 pm. on 25 December, 2010 and for a similar period in each alternate year thereafter; and
(i)from 8:30 am. on each Fathers’ Day until the commencement of school on the following Monday morning.
That the father communicate with the child by telephone on any day prior to 7:30 pm. but no more than once per day.
That unless the changeover occurs at the child’s school, it shall take place at the home of the wife.
That paragraph (8)(a) hereof be suspended during the school term holidays and the long summer holidays and recommence after any particular school holiday period in the same sequence as if the holidays had not taken place.
That the time between the husband and the child under these orders is suspended and the child spent time with the wife during the following periods, unless the parties agree otherwise :
(a)on Mothers’ Day from 8:30 am. until the commencement of school on the following Monday morning;
(b)on the child’s birthday, the wife’s birthday or the child’s siblings’ birthdays (whilst they are under the age of 18 years), if that day falls during a period of time that the child would spend with the husband pursuant to these orders, then from the conclusion of school until 7:00 pm. on a weekday or from 1:00 pm. until 5:00 pm. on the relevant Saturday or Sunday;
(c)from 8:30 am. on Easter Sunday 2011 until 4:00 pm. on Easter Monday and for a similar period in each alternate year thereafter;
(d)from 4:00 pm. on 24 December, 2009 until 4:00 pm. on 25 December, 2009 and for a similar period in each alternate year thereafter; and
(e)from 4:00 pm. on 25 December, 2010 until 5:00 pm. on 26 December, 2009 and for a similar period in each alternate year thereafter.
That unless the principal of the child’s school directs either parent in writing not to attend school functions, activities and events involving the child, each parent be at liberty to attend any such function. Further, that each parent be at liberty to attend any organised extra-curricular activities involving the child.
That if the child is spending time with the husband in accordance with these orders, the wife be at liberty to telephone the child prior to 7:30 pm. on no more than once on any such day.
That if it has not already occurred, the husband and wife forthwith do all things necessary to arrange a consultation with the E Medical Centre to discuss the asthma condition of the child with a view to obtaining a better understanding of the condition and its treatment.
That the husband and wife do all things necessary and sign all such documents as may be required to enable them to attend the Parents’ Orders Program conducted by GordonCare for the purposes of endeavouring to improve their ability to communicate about matters concerning the child’s health, welfare and development.
That GordonCare be provided by the wife, husband or the independent children’s lawyer, with a copy of the Children and Parents Issues Assessment dated 2 February, 2009 and the Family Report dated 14 May, 2009.
That the independent children’s lawyer be discharged from these proceedings.
That until 30 November, 2011 the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child J born … December, 2002 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name/s on the Watch list until 30 November, 2011.
That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
That for the purposes of avoidance of doubt, paragraph (19) of this order remains in force until 30 November, 2011 whereupon it will automatically expire.
That by 1 October, 2011, the husband pay to the wife $21,000 by way of final settlement of all of entitlements under Part VIII of the Act in addition to the entitlements set out in paragraphs (23) to (25) hereof.
That the husband forthwith transfer to the wife at her expense, all of his interest in the property at M in the State of Victoria.
That the wife forthwith refinance the mortgage encumbering the property at M and provide to the husband within sixty days of the date of these orders, evidence of the mortgage liability of the husband being discharged.
That each party otherwise retain and the other relinquish any interest in, all other property in that party’s possession or control including any interest in any superannuation entitlement as at this date.
That all extant applications be otherwise dismissed.
That these applications be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Reiner & Reineris approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 1284 of 2007
| MS REINER |
Applicant
And
| MR REINER |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The clash of parental styles between the father who has an authoritative approach and the mother who has a permissive approach concerning the mother’s three children from a previous relationship has not only led to the sad breakdown of this marriage but also engulfed the parties in a parenting dispute concerning their own six year old child.
The father knew of the mother’s style before marrying her and her approach to the care of the three children.
A combined, if not concerted, subsequent attempt to change the other’s approach failed, leading in turn to recriminations.
I am asked to decide where J born in December 2002 is to live and how much time he is to spend with each of his parents. The dispute does not end there.
J’s parents disagree on many things most of which relate to parental responsibility. A decision has to be made about parental responsibilities or whether to leave the parents with equal shared parental responsibility.
The dispute was widened to include the division of their modest assets. Even that was controversial.
A parenting dispute is largely an examination of the parties’ respective proposals for the future care of a child. The parties ask the court to fulfil its mandate to make a decision which is in the best interests of their child. In this case, the controversial issues were clouded by the stark parental styles.
For my convenience, notwithstanding the parties are divorced and have already been referred to earlier as the father and the mother, I propose to refer to them as the husband and the wife.
There is one child of this marriage. J is six.
The husband was born in the United States of America. He is a 38 year old school teacher. J attends the school at which the husband teaches.
The husband had not married before the current relationship and has no other children. He has no other family in Australia but has family in the United States. He has lived in Australia since the marriage.
The wife was also born overseas. She is 43 years old and describes her occupation as “home duties”.
The wife has not been a significant participant in the paid workforce for 17 years since having her first child. She has a tertiary qualification in accounting. It is the husband’s view that she should be working and earning an income if necessary as a bookkeeper from home, using internet technology.
The wife has three children from her former marriage. They are A aged 17, C aged 15 and N aged 11.
The wife’s first marriage ended in litigation with orders being made by this Court. That causes difficulty in endeavouring to align the time the various children spend with their respective parents. My understanding is that although the husband saw that exercise as simple and within the wife’s control, I am satisfied that the father of the three children does not see it that way. He was certainly not forthcoming with any cooperation.
The husband and wife knew each other and dated for about 13 months before their marriage. They spent time together with the wife’s children present. The husband had the opportunity to observe and understand the permissive parenting style of the wife.
The parties married in November 2001 and separated in March 2007. Since then, they have litigated in this Court and in the Victorian Magistrates Court on a number of occasions. I will deal with those hearings as the husband highlights them as both an injustice to him and an indication of the lack of honesty of the wife.
The final hearing before me was held over five days. Throughout, the husband represented himself.
The wife was represented by Mr Kanarev of counsel. The Independent Children’s Lawyer was represented by Mr Allen of counsel.
The husband is a very well organised man. In addition to his voluminous tightly-spaced affidavit, he produced a ring binder folder containing over 100 annexures. His cross-examination would be the envy of many a legal practitioner even if it was at times, repetitive. He met the various timelines for filing material.
The wife was represented throughout the proceedings by the same solicitors albeit different practitioners within that firm. Her material was lacking in many respects and that became the subject of comment several times by the husband particularly about her lack of corroborative documentation. It is the right of any litigant to present a case as they see fit but where a legal practitioner knows of challenges to various events, particularly in a parenting case, it is prudent to prepare for those various controversies.
Whilst the husband’s affidavit material was prolix, argumentative and opinionated, the wife was vague, lacking in detail and bordering on inadmissible commentary. The husband had an excuse; he is not a lawyer.
The husband was well justified in complaining about the lateness of the filing of documents by the wife. He was not doing so just to be prickly and difficult. I am satisfied he was inconvenienced because he planned his working life around the litigation timetable. I am also satisfied however that he was not prejudiced.
The husband also had justification for complaint about the wife’s financial statement which declared no breakdown of expenditure between her expenses and those of the children notwithstanding the form required that. That was particularly so where the wife made clear that she was seeking spousal maintenance. The problem that this ineptitude caused was twofold. First, the wife was accused by the husband of deliberately being deceitful. I am satisfied that that was not so but the blame must lie at the feet of her drafting practitioner. Secondly, the absence of particularity made the husband feel it necessary to cross-examine at length on the issue about the figures which in turn wasted time. In a case with such a litigious history, the wife deserved better.
The wife sought parenting orders. Her position changed during the trial culminating in a fixed stance in her counsel’s final address. In some areas, she agreed with the Independent Children’s Lawyer.
The wife’s proposal can be summarised as follows. She sought:
·Sole parental responsibility for J’s health but conceded that the husband have responsibility for educational matters;
·J live with her;
·J spend time with the husband during each fortnight from Friday after school until Tuesday before school in each alternate week;
·J spend time with the husband each alternate Monday night after school until before school on the Tuesday morning;
·School holiday contact be determined to coincide with the time that the three siblings of J were with the wife rather than with their father;
·Suspension of weekday time with J during school holidays be lifted and the weekdays resume to coincide with the contact pattern of J’s siblings with their father;
·An injunction to continue in relation to J leaving the Commonwealth of Australia;
·That telephone communication be fixed and limited;
·Specified time to be spent between J and his father on special days.
The husband sought parenting orders. His position did not alter in any significant way. Because the orders were voluminous and wordy, I propose to paraphrase them. He sought:
·Sole responsibility for all major long term issues;
·J to attend M Christian School;
·The discharge of the existing Airport Watch List order;
·That J live with the wife on school days from 3.15pm to 5.15pm and on a variety of weekends on an alternate weekend basis from 5.15pm on Friday until 5.15pm on Sunday coinciding with specific commencement dates in various terms of the school year until 2015;
·For the school holidays to be divided equally and failing agreement, the second half with him;
·For special days such as Christmas Day, birthdays and Mother’s Day and Father’s Day at set times;
·That when J was with his mother, he receive any prescribed medication “at a medical facility in front of an employee of that medical facility and receive a receipt”;
·Each parent provide to the other, information about J’s education and health;
·That each party provide to the other details about medical appointments with an option that all parents attend;
·That the M Medical Surgery be the medical clinic to treat J;
·That J be allowed to participate in one sporting activity each week and that if the parent caring for J could not take the child then the other do so;
·That J attend a Christian church on Sunday morning;
·That both parents be able to attend public performances, games and concerts of J;
·That neither parent denigrate the other parent within J’s sight or hearing;
·That the registrar of the Court hold J passports;
·That J being an Australian citizen be allowed to visit his maternal grandparents and for there to be one annual visit to his paternal relatives in the United States;
·That everyone do everything to avoid J experiencing family violence.
The Independent Children’s Lawyer sought that the Court make orders that:
·The parents have equal shared parental responsibility;
·The child live with the mother;
·That the child spend during each alternate weekend from Friday after school until prior to school on Tuesday morning together with the other Monday night from the conclusion of school until the commencement of school on the Tuesday morning;
·During holiday periods J spend time with his father for seven days of the second and third term school holidays;
·J have at least five days of the first term holidays with the husband;
·J have half of the Christmas school holidays with the husband to coincide with the child’s older siblings;
·There be a variety of special fixture days with the husband;
·A variety of ancillary orders in relation to the implementation of the ultimate orders.
The parties agreed on orders that both do all things necessary to consult with the M Medical Centre to discuss the asthma condition of J with a view to gaining a better understanding of the condition and its treatment with such consultation to include the report by Professor F dated 9 December 2008.
The parties also agreed that they would attend the Parents Order Program conducted by Gordoncare and that Gordoncare have access to the family reports.
The only witnesses in the proceedings were the wife, the husband and Mr B who is a minister of religion and was a pastor at one point, to the parties. The Independent Children’s Lawyer called and relied upon, the evidence of family consultant Ms W.
At the end of the case on the fifth day, the husband sought to initially adjourn and then delay, the hearing, to call his general medical practitioner to give evidence about J’s asthma condition ostensibly to establish the medical neglect of the wife.
After the husband’s application was opposed by the wife and the Independent Children’s Lawyer, counsel for the Independent Children’s Lawyer spoke to the relevant general medical practitioner with the consent of the husband. Counsel conveyed to the Court what the general practitioner said and I was satisfied that blindly calling that doctor would not advance the husband’s case nor prove what he wanted to establish. The husband prefaced all of his remarks about calling the doctor by saying that if the Court was confused or uncertain about what he wanted to prove, then the doctor could be called. I ruled that the probative value of the evidence would be outweighed by the potential delay and refused the adjournment or a delayed resumption.
The wife said that it was always the case that she was to stay at home and care for her children including J. She did that and the husband worked as a teacher financially supporting the whole of the family. It was the husband’s evidence, not denied by the wife, that when the husband came home from work, he cared for J almost exclusively because the wife was engaged in caring for the other three children. It was also not disputed by the husband that the wife breastfed all of her children until they were four years old.
Before the parties married, they agreed to move to the United States of America to live. Various immigration applications were made. That course of action also required proceedings in this Court between the wife and her former husband. Apart from the horrendous costs of those proceedings becoming relevant later in these reasons relating to property issues, the action ended with the plan to move to the United States being abandoned.
In past years during the time that she was raising her children, the wife home-schooled them. The husband said that this “laissez-faire” approach put and still puts, the children at risk because they do not attend school regularly and that it is contrary to State education authority policy. This subject was a contentious one and I deal with it below.
There was little evidence presented by the parties that was not controversial.
There were five contentious issues that were very much the focus of the husband’s evidence, his cross-examination of the wife and his filed submissions. They were dotted throughout all of his documentation. The way the husband saw it, those issues were:
a)The wife’s violence towards him, particularly in the presence of J;
b)The wife’s lack of responsible attitude to schooling of her own children;
c)The wife’s deliberate or neglectful refusal to medicate J with prescribed asthma medication placing him at risk of dire consequences;
d)The wife was a liar who could not be trusted, she having been caught out on a number of occasions in court hearings including the trial before me; and
e)The wife was an incompetent and irresponsible parent.
In drawing all of those threads together, it was the husband’s very strong submission that J was at risk physically and emotionally if I accepted the wife’s proposal or that of the Independent Children’s Lawyer.
In respect of the various issues about which I now make findings, I say that I have made those determinations on the balance of probabilities. In respect of serious allegations set out hereafter, I have applied the provisions of s 140(2) of the Evidence Act 1995 (Cth) and in particular, have approached them in line with the long-standing principle known as the Briginshaw standard.
In Briginshaw v Briginshaw (1938)60 CLR 336 at 362, Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
That is the principle I have applied in respect of the serious allegations made by the husband as earlier set out.
Before turning to the husband’s evidence, the wife’s position as detailed in her evidence was:
·The marriage was “volatile”;
·The husband when “challenged” became “abusive” and then “denigrated her and the children”;
·Following agreement being made about household rules, the husband became “very angry” when the agreement was not followed;
·“The atmosphere” would “generate into hostility and stress”.
The wife conceded her own violent acts to which I shall turn but explained them by saying that the husband’s “threatening and argumentative behaviour” made her on three occasions “react angry” (sic).
The wife’s evidence was short on particularity and so general that it was hard to get a sense of what actually happened from her perspective. In cross-examination, apart from saying the husband bodily brushed past her, she conceded that there was no “physical violence”. Having said that, it then transpired that there was an incident in which she was dragged bodily along in a motor car driven by the husband with J present. That incident is referred to below.
The less adversarial trial process and particularly the provisions of s 69ZT(1) of the Family Law Act 1975 (Cth) (“the Act”), cannot be read as meaning that evidence does not have to be gathered that would comply with ss 55 and 56 of the Evidence Act particularly relating to relevance. That is so where s 60B(1)(b) and s 60CC(2)(b) place so much emphasis on considerations of the protection of children.
It was agreed by all parties at the commencement of the hearing that notwithstanding my expressed concerns about the state of the evidence as detailed in the affidavits, I should give the various material such weight as I felt appropriate. I cautioned all parties about the dilemma in that approach of working out what was relevant and of probative value but all were content for me to follow that course. I reminded all parties that this was not the only time I had discussed the evidentiary matter. I had raised it on the first day of the less adversarial trial and at the telephone mention just before the final hearing really began.
In respect of violence, the husband’s evidence was that he believed in rules, boundaries, and clear consequences. Those rules and boundaries were put in place in a consultative way with the wife after discussion with a counsellor, but within days, the wife “basically tore the rulebook up”. The husband then went on to say that there were “many instances of domestic violence throughout the marriage”. He said there were numerous occasions where the wife was yelling at him in front of the three children. He said the children had witnessed assaults by the wife on him from about November 2006. He said that on one occasion the wife threw a coffee cup at him and charged at him, hitting him with her fist around the neck, shoulder and back. He said he was holding J in one arm and trying to get away from her blows at that time. He said he moved out that particular night.
He said in January 2007, the wife punched and scratched him and bent back his car mirror at the time when J was in the car and becoming extremely distressed. He said the wife also held up a brick and was threatening to smash the car windscreen on that occasion.
The husband also said there was an incident of violence with the wife striking him in the head with a book and “other incidents”. In her evidence, the wife conceded three incidents. Those incidents are the ones referred to by the husband but the other vague and general assertions were not dealt with in any detail and I do not propose to visit them any further.
In his affidavit, the husband referred to the fact that there was a discussion in the family over the issue of domestic violence revolving around who was the head of the family. This extraordinary debate involved the question of 15 year old A. It was difficult to get a sense of exactly what happened. From the husband’s perspective, most of the problems occurred over a period of some three weeks.
The wife did not dispute the fact that there had been three occasions where she had lost control and reacted, but on each occasion she endeavoured to explain them in the context of what was obviously a controversial policy within the house relating to parenting. That policy went back to the distinction of styles between the parties that I have already mentioned.
The husband viewed the situation as simple. He was a non-violent man who had endeavoured to change the way the household was run by using a consultative process with the assistance of a counsellor but the wife could not maintain it. He said she became angry and as a consequence he removed J from that environment for his own safety.
The wife’s perspective on all of this was different.
For the purposes of making findings as to exactly what happened, I prefer to start with the evidence of the husband’s witness Pastor B.
Mr B is a minister of religion and a pastor of a Church of Christ. He has a Diploma of Teaching and a Bachelor of Education but no formal training in psychology. He was the pastor to the family when they attended his church between October 2003 and early 2006. In 2006 they moved away and began attending a different church. His focus was on the period during which he had worked with the family.
Mr B said that in April 2004, the wife brought A to see him because she was concerned with issues about A’s refusal to attend school. He said he saw A for some months and formed the belief that there was an increasing tension between husband and wife, the root cause of which was disagreement over parenting styles. As a consequence, he began pastoral counselling with the husband and the wife.
Mr B said that an agreement was reached about household responsibilities and he drew up a document which he discussed with the husband and wife. He said both were keen and positive and they took the document away and returned later with it having been amended. He said he met with the husband and the wife and the children for the purposes of a discussion about the document. He said some children were not positive about it. When asked about the distinction between parenting styles, he said the wife was “more permissive” and the husband was “authoritative”. Importantly, he said he did not see anything inappropriate in what was happening but he did notice that the husband and wife were at “loggerheads”. He said he did not see anything unreasonable about the husband’s approach. In respect of some of the actions taken by the parties in relation to children which the husband described as “consequences” for not complying with the agreement, he did not think they were appropriate. He was referring to what he conceded in answer to a question by me, was punishment.
He said that it was the wife who had approached him about A’s school attendances and that it was she who was upset about some of the punishment to which I have just referred. He said he did not see the children as being unhappy.
The behaviour in the household about which the husband was concerned and which was the subject of the discussion with Mr B related predominantly to the wife’s lack of discipline and boundaries as well as consequences for the children. The husband said that the children were told by the wife to go to their room but they refused as a result of which she lost her patience and her discipline style resulted in yelling and hitting the children. He detailed incidents between the children such as one child pushing the other into the dirt and calling him a dog and the wife doing nothing about it. He said that A urinated on the toilet room wall daily and refused to clean up his own puddles and in turn, the wife refused to insist upon A cleaning it up. He said the agreement involved questions about personal health, hygiene, sticking to bedtimes, not sneaking food, attending school and courtesy. In addition, it included no hitting or threats and a contribution to the household like undertaking tasks such as doing dishes and cleaning rooms.
There was nothing unusual about those sorts of activities as one would expect in any household involving children and in particular, teenage children. It must be remembered however that there was a very distinct difference in style which Mr B described as permissive on the part of the wife. The husband’s view was completely at odds with that.
The consequences of a breach of the agreement or a failure by a child to behave according to the agreement resulted in what could only be described as punishment. The wife said that the child A was required to cart bricks from one location to another. The husband seemed rather content with the fact that it would have only taken him minutes to do that task but A took hours because he was obviously refusing to comply. This concept of brick carting came from the husband’s own childhood in which he was required to cart logs. The wife alleged that the child was required to undertake this punishment in the dark as late as midnight. Whilst the husband disagreed with the time, he conceded that it was at least dark. On one occasion when it was C’s birthday, A was not permitted to participate in various festivities because he was outside carting bricks. The wife said she opposed this concept but the husband indicated that that was not so as there was a consultative process involved in determining the consequence. I accept the wife’s version of that as it seems inconsistent with her permissive approach and the evidence that she gave about how she had brought up her children.
The wife also alleged that the husband had threatened that C would have to carry bricks although that never occurred. The husband did not agree he made that threat but again, I accept it was the husband’s idea rather than some form of positive parenting approach of both. That view is very much supported by the evidence of Mr B.
Another area of contention relating to punishment was that a child was required to sit outside and write “lines”. The parties disagreed not only on the concept but also actually what lines were being written. The wife asserted that the husband insisted that it be passages from the Bible whereas the husband denied that and said that he had required it to be from a dictionary which was his preferred text. Mr B was aware of the concept and said it was inappropriate to use the Bible because it was a sacred text. He said it should not be used as punishment. Again because it was not consistent with the wife’s style of disciplining her children, I accept the wife’s evidence that it was the husband who set the parameters. I accept that the Bible was in fact one of the texts used.
Another incident relating to boundaries or punishment concerned the child A being required to stay in the laundry. There was a significant dispute on the evidence as to the duration and circumstances. The husband’s version was that it was for a few days in the afternoon but claimed it was not his idea. He said on the contrary, he opposed it. It was his idea that A play outside with the other children and that when he came inside for dinner with the other children, he had to sit in the laundry with the door open. It was put to the husband that the children’s school found out about it and intervened but he denied that. There was no evidence provided as to what if any, action the school took. The husband put to the wife that when he came home from work he found that the wife had put A in the laundry and whilst the wife conceded that that was so, it was only on the basis that she was too frightened not to do so because of the response of the husband. Again because of the distinction in styles and the evidence of Mr B, I accept the wife’s version in relation to that.
The husband asserts that the wife is violent
I turn then to the contentious issues raised by the husband commencing with violence. Of the three incidents of violence conceded by the wife, I accept that all of them arose out of disputes between the husband and the wife over the parenting styles and the management of the children and the household.
One of the incidents which the husband highlighted was the wife throwing at him a coffee cup which shattered. His evidence was that an argument occurred about parenting matters over which the wife became angry and threw a coffee cup which shattered on the table behind he and J. The wife did not deny the throwing of the coffee cup but put it in context which the husband did not dispute. There had been a comment by the husband about the fact that the wife had been sleeping with her 14 year old son. She inferred that there was some sexually improper implication from the suggestion which the husband denied. The husband was quick to assure me that no such implication was intended. However before the State Magistrate who heard the parties’ disputed intervention order, in response to such an assertion by the wife in cross-examination, the husband said according to the transcript:
[A] had slept in your bed with you for the first nine years of his life from birth to the age of nine and that that was more years than your first two husband’s combined, and that that may explain the unhealthy lack of boundaries on [A’s] behaviour from you.
In the context of a dispute about parenting and before such an explanation was given to the wife, it is perhaps understandable that her reaction was as it was. Whilst that does not excuse the throwing of the cup, it certainly explains it.
Another incident that the husband complained about and which the wife acknowledged occurred late at night was when the wife wanted to argue about something that the husband was doing wrong in a parenting sense. The argument became heated over the question of yelling at children. The husband said that he did not feel comfortable in a home where there was so much yelling as a result of which the wife hit him in the ear with the book that he was reading. The unusual feature of this was that because J was asleep on the floor beside their bed, the parties moved to the ensuite where the discussion became an argument and the wife hit the husband. What happened after that is not clear.
The subject of violence by the wife was of particular importance in an application by the husband for an intervention order in the Melbourne Magistrates Court on 13 April 2007. This was only weeks after the parties had separated. In his evidence to the Magistrate as shown in the transcript which the husband provided, he told the court that the violence commenced in November 2006. He confirmed that it was all about boundaries relating to children.
The husband told the Magistrate that he did not like J being exposed to domestic violence constantly and importantly, he did not want the possibility of him responding to it.
There is no justification for a parent to throw a coffee cup at another whether or not a child is present. The presence of a child exacerbates the situation because it creates fear in the child let alone potential bad habits. However, I am not convinced that it was as simple as the husband portrayed it. Having heard all of the matters that went on in the household and in particular the matters to which I have just referred, I am satisfied that the wife was frustrated. That does not excuse her behaviour but it certainly explains it. I am also satisfied that the evidence shows that this occurred only over a short period of time.
Of more concern was that an argument occurred one morning and the husband went to work leaving J in the care of the wife. The husband returned home from work intending to leave the marriage. As he was packing his suitcases into the car, the wife arrived with J. J inquired where his father was going and then insisted on going with him. What followed was an unseemly incident in which J was placed in the car and the wife was endeavouring to stop the husband. She tried to get into the car. Whilst she was half in the car, the husband drove some distance. The parties dispute significantly the amount of distance involved but it matters little. J was distressed on both parties’ versions. There is little doubt that the wife could have been seriously injured notwithstanding the speed at which the car was travelling. The husband said that he stopped the car and the wife then berated him for a further 30 minutes. Neither party could be given any parenting credit for that behaviour having regard to the fact that it was in the presence of J and distressed him. What troubled me was the fact that the husband unilaterally chose to take J from the home. When challenged about that, the husband said that he was removing J from a violent situation. However, my understanding was that the incident had occurred before the husband had gone to work in the morning and there was no repeat of that incident when the wife returned home that night. The husband’s evidence about the need to remove J from a risk situation was shallow and not acceptable.
Least there be any misunderstanding, my criticism is of both parents in behaving the way they did. Their focus was not upon J.
These disputes over the parenting styles culminated in the complete breakdown of the relationship and the husband leaving the home.
In respect of the issue of violence, I find that the wife was physically violent to the husband. I find that the husband was violent to the wife in respect of the car incident. Each party accuses the other of yelling and behaving in a denigratory way towards the other. I am satisfied that all of that arose out of the dispute between the parties as to parenting style.
Section 4 of the Act describes family violence as:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There is a notation to the definition which reads:
A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Throughout his case and in particular the cross-examination, the husband maintained that he had not been involved in any physical violence. It is not just physical violence that fits within the definition of family violence. The definition is clear and relates to conduct that would cause a reasonable person in those circumstances to fear or be apprehensive about their personal wellbeing or safety.
I am satisfied on the evidence that both parties have been guilty of conduct causing the other to fear for their wellbeing or safety. I am satisfied that the husband feared for his personal safety because of the violent attacks of the wife. I am satisfied as a result of the conduct of the husband that the wife feared for her wellbeing as a result of the car incident.
The sad fact of life is that J saw most of this.
In her evidence, the wife conceded that she had undertaken an anger management course and had counselling about the issue. It is important to note that there has been no similar episode subsequent to the parties’ separation. The wife also gave evidence which was not disputed by the husband that after some of the incidents she not only apologised but also bought the husband flowers. The husband agreed with that.
The husband maintained that at no stage had he done anything wrong in terms of family violence or given cause for the wife to behave the way she did. I reject that.
The husband asserts that the wife is a liar
On 7 March 2007 late in the afternoon, the husband sent the wife an email. When asked about this, he said that he acknowledged it was mean and inappropriate. It was certainly written at a time when the relationship was raw from the separation. Despite that, it is indicative of the husband’s controlling nature. In it, the husband set out his view of what was good for the wife’s three children notwithstanding he was no longer residing with them. It gives some insight into what was happening immediately prior to the separation. The husband complained to the wife about her discussing the marital problems with the children because it added to their insecurity. He then added “so does our fighting and yelling”. In evidence, the husband denied that he behaved in that way yet his own email would tend to suggest that that behaviour was mutual.
In the email, the husband talked about the biblical model of family authority by which he was clearly indicating to the wife that he was the head of the household and she was not complying with that model. He then said:
[J] and I will honor (sic) my role as the head of the family and will honor (sic) my choice (and 400,000,000 other people’s (sic) choice) of country to raise my kids.
This was a clear reference by the husband to moving to the United States of America. He went on to say:
[J] & I will honor (sic) my role as the head of the family and move to America. I believe following the Biblical model the family authority is vital.
The email was in response to that of the wife which complained about the fact that she did not want to be accused again of being “loud” and “not listening”. She said:
Up against you, your perception is the only one which is always “right” or “good” because that is what you say is “god’s” perception.
Even taking into account the fact that both parties have a very strong Christian faith, the email makes clear how the husband approached the task of managing the household and endeavouring to change the way the wife raised her children. Unlike at the time the email was sent, in cross-examination, the husband was contrite about having sent it but it is a window of opportunity to see just how the parties were living prior to it being sent.
Sadly, what that triggered was an application by the wife filed on 29 March 2007 seeking Airport Watch orders. The email together with the fact that the husband had taken J unilaterally before, presumably gave rise to some concern on the part of the Senior Registrar in making the orders without notice to the husband. This was a contentious subject because the husband alleged that the wife misled the court because she had given evidence that the husband had taken the passports. It transpires that the passports were subsequently found in the home by the wife but the husband saw that incident as an indication of the untruthfulness of the wife.
In cross-examination, the husband put to the wife that he had told her at the time he left that he was leaving his passport behind. The wife denied that he said that. The husband referred to the transcript of the hearing before Senior Registrar FitzGibbon but it does not assist me. However, having regard to the husband’s email at separation together with his concession that he said things he should not have, I accept the wife’s version that she did believe that the passports were missing. In a time of heightened anxiety, I accept her reaction of thinking that the husband took them, to be believable. The husband maintained he was a law-abiding citizen. I have some concern about his taking the high moral ground when I later turn to tax returns and a child support issue.
I do not have the benefit of reasons for the ex-parte orders being made but on any view of the evidence, it was not just the passport issue that gave rise to the making of the orders. In any event, the Senior Registrar made the wife’s application returnable just over two weeks later at which time, Young J adjourned the matter because the husband made an oral application to preclude the wife’s then solicitors from acting for her any further. His Honour made that order. When the matter was returned before Senior Registrar FitzGibbon on 14 May 2007, no change was made to the Airport Watch orders.
Thus, the second significant topic of concern to the husband was his assertion that the wife was a liar as a result of which this Court had been misled and previous courts had made decisions which affected J’s welfare on an incorrect basis. That is, the wife lied to the Court in her affidavit in respect of the passports. In the subsequent to the ex-parte hearing, the wife agreed that she had found them at home. The husband’s complaint was that the evidence was never tested and the wife had obtained orders on a false basis. On this material and on the cross-examination of the wife, I would not find that the wife was deliberately untruthful.
The husband said that the wife told Ms W in January 2009 that the intervention order prevented her from attending J’s school. He said that Ms W confronted the wife and the wife changed her story. The husband had the opportunity to test Ms W on that issue and did not do so. What Ms W said in the issues assessment report was:
[The husband] took out an Intervention Order and had that extended twice. This limited [the mother’s] ability to attend the school her older son attends and that [J] will now attend and at which he teaches.
The husband’s point was that the intervention order excluded the wife from the school except for the purposes of attending for reasons directly connected to the schooling of one of the children.
When questioned about what she told Ms W, the wife said exactly what was recorded by Ms W in her report. It was not that the intervention order excluded her from the school but that it limited her attendance. That limitation could mean a number of different things. Many of the emails that the husband tendered in evidence indicate concern by the wife about getting into trouble with the law by doing something wrong.
Having regard to the absence of cross-examination of Ms W on that issue, I see no reason to accept that the wife lied in respect of it.
The husband also pointed to the fact that the wife was charged by police for breaching an intervention order by driving to a holiday location when he was camping with J in order to harass him. He attached both the witness summons to him from the police as well as the transcript. I was not able to discern from the evidence before me just what that issue was about and reading the transcript of cross-examination did not make it easier.
State Magistrate Hill heard the case on 9 October 2008. It was a two day hearing apparently. His Honour said:
I find it was reasonable in the circumstances for [the wife] to attend the kindergarten on 17 December, especially according to the Family Court order. [J] should have been in her care at that time. Mrs [I suspect that should read Mr] [Reiner] may have felt uncomfortable with this perception of the situation but I do not find that [the wife] was engaging in any conduct that could be part of harassment. I also find that [the wife] was at the […] camp ground for legitimate reasons and that she had no intention of harassing [the husband]. Again, subjectively [the husband] felt uncomfortable about this but I do not find harassment. The charge is therefore dismissed.
The husband was at pains to point out that he had every right to have J with him and that there was no misunderstanding or confusion about court orders as a result of correspondence with the wife’s solicitor. I shall turn to that below. Even if that situation was not correct, Magistrate Hill found that the wife was not engaging in conduct that could be seen to be harassing.
The husband’s approach to this particular issue was so blinkered that I could not find anything to justify the position he adopted.
The husband complained that the wife had accused him of unilaterally disciplining A in an abusive style by making him haul bricks. The emphasis was on the assertion that the husband had unilaterally disciplined J. His position was that he adopted a consultative approach and the wife agreed although I accept the wife was caught between her loyalty to her husband and her role as a parent. Ms W in her issues assessment report seemed under no misapprehension about what was in dispute. She said:
[The wife] perceives herself as having failed to protect her older children from the abusive nature of [the husband’s] discipline.
When cross-examining the wife, the husband put consistently to her that their combined approach was of a consultative nature and that there had been agreement about discipline. The wife did not agree with that position and it is certainly not a conclusion I could draw after hearing the evidence of Pastor B. In that regard therefore, I cannot find that the wife lied or endeavoured to lie, to Ms W.
The husband said that the wife lied to Ms W saying that her violence was trivial because it did not cause injury. The husband pointed to the coffee cup throwing incident. The best evidence of this incident comes from the cross-examination of the husband during the intervention order hearing. He said the wife threw the cup which shattered on the table behind him and J. In a very leading question, he told his counsel that pieces of the cup struck both he and J. No further evidence was given about that issue. However, in his affidavit in this Court at page 11, he said:
There was no injury because I showed enormous restraint and chose to flee with [J] instead of retaliate.
In those circumstances, I am not able to say that Ms W was in any way misled about that issue.
The husband then asserted that the wife had deceived Ms W by proposing that J live with him in the second half of the school holidays knowing that he had to work in the second half. The husband produced in the hearing and it was tendered by the wife, a plan showing his contractual obligations to the school. In a three week holiday period he is obliged to attend the school on the third week for particular curriculum development. If the Monday of a third week is a public holiday, he is obliged to only work the four days thereafter.
There is no evidence and I do not find the wife was either untruthful or misleading in respect of that issue.
In his affidavit, the husband said that in the January attendance upon Ms W, the wife showed a “secret doctor letter” to Ms W. He said when he asked for a copy, he was denied but promised a copy later. He said that Ms W appears to have used the secret document to reach her conclusion about J’s health.
At the conclusion of Ms W’s evidence before me, I inquired about that particular allegation because no party had otherwise raised it. Ms W was adamant that there was no secret letter. It is a serious allegation to make. The husband had the opportunity to test Ms W on the basis of her potential bias and did not do so.
I find there was no foundation for that allegation.
A similar allegation was made about the wife slipping documents to Registrar Mestrovic about the wife’s work and that the registrar used the “secret document” to come to the conclusion that the wife was not earning an income. I do not know why it could be said that the registrar would reach such a conclusion and it was certainly not in evidence before me. The husband did not test the wife in respect of that issue. Having regard to the earlier reference to the secret doctor letter, I would have no reason to think that a registrar of this Court would take such a course of action.
The husband said as another piece of evidence of untruth by the wife that to the best of his knowledge, the wife’s first husband had no reason to resist changing his holiday with J’s siblings during the school holidays. This issue related to the fact that the husband had to work in the third week of the holiday period. Apart from the fact that the husband blandly said that it was a simple change of one word by the wife in a court order in respect of the holiday period between the three children and their father, the husband’s own evidence indicated that the children’s father was not cooperative. In Annexure “2” to the husband’s affidavit, he produced the letter from the wife to the immigration branch of the American Consulate General in Sydney dated 7 January 2007. The third paragraph of that letter reads:
We had spent the last years with Court business with the children’s biological father which had been very stressful. He had gone unrepresented in court and had no problems with delaying the process for us over the years which cost more than it should have. Initially the dispute was that after saying how great it would be for the children to live overseas with me while we were even married, when the children’s passport was to come for renewal, he refused just because he could…
My children are now fully aware that their biological father is totally unwilling to take them into his home with his wife and will do no favours for this family.
By agreement, counsel for the Independent Children’s Lawyer spoke to the father of the children. The father of the children made clear he was not going to be cooperative. Thus it was not simple for the wife to change her school holiday arrangements.
The husband complained about the fact that the wife took out intervention order proceedings against him. He said that on 11 April 2008 an order was made in his favour by the State Magistrates Court against the wife in a contested hearing. He said that within days thereafter, the wife issued proceedings against him. I am not sure how he concluded that it was only days but in any event, neither party produced the wife’s application made to that court. It is clear from the order that on 15 July 2008, the wife obtained an ex parte order. In her affidavit of evidence in chief, the wife said that she took out the intervention order because the husband was acting dangerously and harassed the family by bashing on her door at changeover. She said it included all of the children as the husband constantly emailed her with verbally abusive messages and threatened to have her arrested for alleged breaches of the intervention order. The husband cross-examined the wife about whether she got the intervention order because she was in fear. She replied that she was because of the bashing on the door. She said that it was scaring the children.
That application came before the magistrate on 29 July 2008 but apparently there was either not sufficient time or resources for it to be heard that day and the ex parte order was accordingly extended to a final defended hearing on 31 October 2008.
The husband said of this application:
[It] contains so many perjuries that the contested hearing on 31-10-08 would definitely cost her Costs and likely lead to perjury charges. The wife avoided this disaster by asking the Courts to withdraw her application on 31-10-08. This clever legal manipulation was incredible (sic) damaging to [J].
The wife did not present any evidence about the extent to which a payment to her of maintenance would increase her earning capacity by enabling her to undertake a course of education or training. She acknowledged that with the skills she had some years ago, she could be retrained but there is no evidence as to the impact of such a retraining program on her or on the economic position. The husband has his qualifications and the security of employment. He did not suggest that his position as a teacher at this particular school was under any threat. He did not suggest that he needed to be retrained or wanted to be retrained to improve his economic lot.
This is not a case in which the duration of the marriage has substantially affected the wife’s position save that the birth of J and the responsibilities that have now come with it must be seen to have delayed her opportunities to exercise some of the skills that the husband alleges that she has. There is no suggestion that the decision to have J was anything other than a mutual one. Accordingly, the husband has to accept that he has a responsibility to ensure that if the wife can be retrained or desires to continue her role as a homemaker and parent, he contributes to the best of his ability accordingly.
Whilst an enormous amount of effort was put into this case by the parties in respect of the parenting issue, that has come at a significant cost to both of them. I have already dealt with the fact that the husband had the benefit of paying his legal fees and the wife has not. Both parties have that debt to carry. That has a significant impact in this case having regard to the very modest pool of assets involved.
I have already mentioned the question of child support being relevant as part of the assessment. It is mentioned in both s 79(4) and s 75(2) of the Act. The husband’s evidence on this issue was unsatisfactory. His position was that he was a law abiding citizen and that he would also pay whatever he was obliged to pay. That had a very hollow ring about it. The husband had not lodged his tax returns for two years. The impact of that was that he was assessed at a much lower rate for child support. When that was brought to his attention, he was quick to point out that he had not intended to do anything wrong by not lodging his tax return. I must express cynicism about that because he well knew that his child support obligation dropped with less reported income. He withheld payments that would have otherwise gone to the wife because she had been deemed to have been overpaid. I am not at all convinced that he saw the point that it was J who suffered. Whilst s 75(2)(na) refers to the child support assessment, the very next paragraph requires a court to take into account any matters that is relevant as a matter of justice. For a party to say that they are blindly following the assessment of the Child Support Agency in circumstances where they know that if all information was available, that assessment was not appropriate, is reprehensible. In my view, for the husband to say that he was paying what he was obliged to pay is just not good enough. It gives me little confidence that he would not manipulate his income in the future. That is particularly so when on any view, he was portraying in the documents filed at the court what his real income was but in his affidavit, he said:
I say that I have always paid every cent of Child Support either on time or early. I accidentally overpaid the wife hundreds of dollars of Child Support in 2008. Because the wife refused to pay back the Child Support she owed me, I adjusted my payments until her debt was repaid. I was absolutely open and honest with the Wife about the Child Support she owed me.
That evidence did the husband no credit.
When I balance all of those factors together, there is clearly a disparity between the future economic circumstances of both parties which cannot be ameliorated by some particular effort of the wife to improve her circumstances having regard to the matters that I have raised. That warrants an adjustment in her favour. I assess that adjustment as a further ten per cent.
The assessment to which I have just referred does not take into account superannuation entitlements because I have isolated the superannuation of the husband in a separate pool. I have already made an allowance based on contribution in favour of the wife as to 30 per cent in respect of the husband’s superannuation but the same question must be asked about whether there is a justification for any further adjustment because of the factors set out in s 75(2) of the Act. The husband’s entitlement to superannuation will grow but the wife will have no prospect of having anything similar albeit that the husband’s current superannuation entitlements are modest. The husband is younger than the wife and therefore presumably has a longer opportunity in the workforce to contribute towards superannuation. Against that as I have pointed out however is the reality for him which is that it is a long time before he can access that superannuation. The greater adjustment of non-superannuation assets in favour of the wife however does not enable her to put aside money that would give her the opportunity to create the base as a superannuation investment that would be similar to the husband. That is because of the fact that the equity that the wife will retain in the home is modest and I was handed her costs letter indicating that she is still indebted and will remain so for the legal representation associated with this hearing. That therefore justifies further adjustment in respect of the superannuation entitlement. I assess that as only five per cent having regard to the size of the superannuation pool involved.
Accordingly in respect of the non-superannuation assets, I assess the entitlement of the wife as to 65 per cent and as to the superannuation pool 35 per cent. Those percentages mean that the wife is entitled to $214,500 from the non-superannuation asset pool and $14,350 from the superannuation asset pool.
Ultimately however, the outcome must be just and equitable to both parties. Neither party sought a splitting order and the wife certainly made no indication of desiring any superannuation. It makes sense therefore for the wife to have the cash entitlement and the husband to retain the superannuation entitlement. Rather than give the wife the $14,350 worth of superannuation, that should be adjusted in the non-superannuation entitlement. However, it would be unfair to the husband to simply add $14,350 because he does not have access to that superannuation for a long time to come. That sum must therefore be substantially discounted. Overall, it seems to me that the sensible solution is to give the wife an adjustment in her favour of a total of $220,000 of the non-superannuation assets and the husband retain the superannuation.
The wife already has $199,000 worth of equity in the former matrimonial home and she is therefore entitled to a further $21,000 to take her entitlement up to $220,000.
The question of how the husband would pay the wife was not seriously argued by her. The husband however said that he would get a second job but on any view, that has a significant impact on J both in terms of the time of the husband to spend with the child as well as the quality of the care. The wife’s case was never prepared at least on the documents in circumstances where she was anticipating a payment and in my view, it is just and equitable to the husband that the wife should wait for that cash payment. I propose to give him two years to make the payment.
The wife sought spousal maintenance.
Section 72 of the Act says:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
On the basis of the evidence before me, the wife reaches a threshold on the basis of not being able to adequately support herself by reason of the fact that she has the responsibility for J but I am also satisfied that she could not obtain appropriate gainful employment at this stage of her life having regard to the responsibilities associated with the other children. Section 72 obliges the court to look at the provisions of s 75(2) which in turn includes not only s 75(2)(l) but also the fact that she has the obligation in law to support her three other children.
Having reached the threshold however, it is important to recognise that the liability of the husband only arises thereafter to the extent that he is reasonably able to so support the wife. I had the distinct advantage in this case of examining the minutiae of the parties’ respective financial circumstances. Neither party seriously challenged the evidence of the other but particularly in relation to the husband, there was no challenge to the expenses that he had. I am satisfied on the basis of the evidence that he presented, after payment of appropriate and necessary expenses, he could not adequately afford to pay spousal maintenance either in a periodic sum or having regard to the property division to which I have referred, could he do so in a lump sum. Accordingly, I propose to dismiss the wife’s application for spousal maintenance.
I certify that the preceding three hundred and fifty-two (352) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.
Associate:
Date:
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